Jersey Unreported Judgments

[2003]JCA009

COURT OF APPEAL

                                                              16^th January, 2003.

William John SCOBIE

-v-

The Attorney General

Application for leave to appeal against a sentence of 5½ years' imprisonment passed on 10th October, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 23rd August, 2002, following a change of plea to guilty to:

[The Crown did not proceed with Count 2 of the indictment - possession of a controlled drug (cannabis resin) with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1961 - which is to remain on file.]

Leave to appeal was refused by the Bailiff on 6^th  November, 2002, and on 8^th November, 2002, the appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew the application to the plenary Court.

Advocate C.M. Fogarty for the Appellant;

J.C. Gollop, Esq., Crown Advocate.

JUDGMENT

CAREY JA:

Introduction

1.        This is the judgment of the Court on a renewed application for leave to appeal against a sentence imposed by the Superior Number of the Royal Court on the 10th of October 2002 following an earlier plea before the Inferior Number of the Royal Court to an indictment containing one count of being concerned in the fraudulent evasion of the prohibition on the importation of a Class B drug, cannabis resin, weighing 16.1 kg. 

Circumstances of the offence

2.        The unusual feature of this case is that the Applicant committed this offence in 1995 when he was jointly concerned with another man called Bain in a conspiracy to import the aforementioned quantity of cannabis resin into Jersey.  The circumstances of the importation of this consignment, which was valued in 1995 at £92,787, (there being no suggestion that there has been an increase in street value since that time) were set out in the report of the proceedings in the court below under reference 2002/189. As we will have to compare the sentence imposed here with Bain's sentence of 7½ years, after a trial, we need to record the facts so far as they can now be ascertained.

3.        The story commences on the 8th November 1995 when the Applicant went to a store in Glasgow and bought a three piece suite for £1,650 in cash.  The receipt was given in the name of a Mrs C Hudson whose address was given as 3 Boyne Terrace, Great Union Road, St Helier. The Applicant gave his name as Mr. Hudson. There was no such person at the said address which was where Bain was living.  The Applicant told the salesman that he would take the suite away with him there and then and he loaded it onto a white van with the assistance of another man who has not been identified.  Subsequently, the suite was delivered by the Applicant to Pickfords in Dunfermline on the afternoon of the 9th November 1995 and the prosecution claimed that at that stage drugs had been concealed in the base of the settee, that is to say some time after the Applicant collected the suite from the shop and its delivery the following afternoon to Pickfords in Dunfermline.  The Applicant denies knowing that there were drugs in the settee at this stage, although he knew something was going to be imported.

4.        By the 10th November the Applicant was back in Jersey, but it was not until the 30th November and after a considerable number of telephone calls from the telephones of Bain and the Applicant to Pickfords that the suite arrived in Jersey. The arrangements for transport of the suite were made by the Applicant who paid Pickfords for the transport costs, and he signed the receipt under a further false name - this time "J. Reid".  Delivery took place on the 1st December.  The Pickfords' delivery driver was met by Bain and the Applicant.  Whilst the settee was subsequently transferred to the Applicant's flat in St Helier, the drugs were removed before that stage and they were subsequently found in an airing cupboard at 3 Boyne Terrace, where Bain was living. The Applicant's finger prints were found on the wrappings, which were with the drugs. Bain was apprehended. By the time the police had identified the Applicant and reached the place where he was living it appears that he had absconded and in fact on the 13th December he left Jersey on a speedboat which travelled to France and got into difficulties at sea. Another aggravating feature was that he was at the time on bail for unconnected motoring offences. The Applicant however managed to get away despite interest from the French police when the boat foundered and was not seen again until the 3rd December 2001 when he surrendered to the police at the main Police Station in Jersey.

The basis of sentence

5.        The Royal Court accepted the Crown's conclusion that the starting point to be taken in this case was 8 years - the same starting point as taken in the case of Bain.  The Crown took the view that the Applicant had been involved in what was a joint and complex enterprise between him and Bain and there were no grounds for distinguishing between the two of them.  In the view of the lateness of the plea and the strong evidence against the Applicant, it was suggested that the full one third reduction was not warranted.  However in the event, the sentence of the court was, in line with the conclusions, a term of imprisonment for 5½ years.  The second count of being in possession with intent to supply was left on the file.

Mitigation at the original trial 

6.        The Defence suggested a starting point of 7 years on the basis that Bain's involvement was greater than that of the Applicant.  The Applicant contended that he had been sent to Scotland at the request of Bain to purchase the settee and that in return he would receive the settee and £1,000.   He claimed that he did not know what was being imported inside the settee.  The psychiatric report suggested that he had cognitive disfunctioning due to possible brain injury when he was living in India during the time that had elapsed since he had absconded. This resulted in his memory being affected, but this could also have been as a result of his drinking habits. He had returned to Jersey of his own accord and surrendered to the Police. He did not make any admissions in connection with the original offence. There were two reasons for this. Firstly, he may have been given legal advice not to make any admissions in respect of offending which was some 6 years before and secondly, and perhaps more understandably, his powers of recall may have been such that he could not sensibly give an explanation of his involvement in the offence. The Crown re-investigated the matter and there was further delay before he could be committed. The case proceeded and at a fairly late stage the Applicant pleaded guilty. Notwithstanding this apparent lack of co-operation Advocate Fogarty urged that the Applicant receive full credit for returning to face the consequences of what he had done - that is to say 7 years less a full third discount which, although not spelt out to the Court, results in 4 years 8 months.

The case before this Court

7.        Advocate Fogarty who again represents the Applicant has three points:-

(i)        The starting point for this Applicant should have been lower than that for Bain as he was less involved than Bain. 

(ii)       Although it does not seem to have been pressed strongly at trial, Miss Fogarty makes the point that a further discount is appropriate in this case because of the delay in bringing the Applicant to trial.  It is conceded that the Applicant, shortly after learning that Bain had been arrested, left Jersey in somewhat unusual circumstances. The intervening years have not been fully accounted for, but it appears that the Applicant may have travelled to a number of foreign countries and during that time suffered, he suggests, various mishaps including being poisoned on two separate occasions, once being bitten by a cobra and on a second occasion by a pike fish.  More seriously he claims that he was involved in a motorcycle accident in India as a result of which he suffered a fractured skull.  The court below had the benefit of a comprehensive medical report from Dr Blackwood who noted that there had been a drink problem.  His conclusion was that whilst the Applicant had serious problems with his memory and his cognitive functioning, without further investigation it was not possible to say what caused these.  The Court's attention has been helpfully drawn to the case of R v. Bird 1987 9 Cr App R (S) 77.  In that case Lloyd LJ drew assistance from a previous unreported decision of the Court of Criminal Appeal in 1982 in the case of Shingles.  In that case Dunn LJ is quoted as saying in an appeal against sentence for drug related offences similar to the one that arises in this case:-

"But in our view, the learned judge did not give sufficient weight to, and did not give the appellant sufficient credit for, the fact that since he absconded in 1977 he has lived a perfectly respectable, law-abiding life and has obtained good employment.  The judge appears to have taken the view that because the appellant absconded he was unable to make any substantial reduction in the sentence by way of mitigation.  Indeed the learned judge said that he would not add to the sentence on the count of absconding.  But, in the view of this Court, where a man had changed his way of life from a criminal way of life to a law-abiding way of life, as this man had, it is right that he should be given credit for it when being sentenced for admittedly serious offences."

Lloyd LJ in Bird then went on to say this about the decision in Shingles:-

"So far as I know, the approach of the court in that case has never subsequently been criticised.  It is a decision directly on the point of principle involved in the present case.  Even if we were not bound by that decision, we should have adopted the same approach ourselves.

Of course there should be no encouragement to defendants to abscond in the hope that their sentences will thereby be reduced.  On the contrary, absconding will normally add to the overall sentence.  But there may be exceptional cases, of which this is one, where the sentencing court ought not to shut its eyes to subsequent events.  It was the duty of the court to sentence this man for this offence.  The offence had not changed by the passage of time, but the man had."

(iii)      That the failure of the sentencing court to make express reference to the mental state of the Applicant and to acknowledge his voluntary return to Jersey gave rise to grounds of complaint. Firstly it indicated that the Royal Court had not given them due weight and secondly it made the Court's decision open to objection on ECHR principles because there was a failure to give proper reasons.

Decision

8.        We consider that the court below was entitled to the view that the Applicant's involvement with this importation was substantial.  He was closely involved in buying the suite and delivering it to Pickfords for transfer to Jersey.  Although there is no direct evidence that he was actually involved in packing the cannabis into the suite, we find it incredible that he was not at the very least aware of what was being put into the settee before he took it to Pickfords in Scotland. He was clearly involved at both ends in arranging the shipping of the consignment with the contraband in it to Jersey.  The failure to reduce his starting point below that of Bain cannot be criticised.

9.        From the passages in Bird we conclude that the proper approach is to treat cases where a discount should be afforded for what has happened in the period since the offence has happened as exceptional.  It seems to us clear that where the Court has before it a recidivist who absconds and leads a blameless life for a number of years before being apprehended, he should be sentenced not as a recidivist but as somebody who has made a genuine effort to lead an industrious life.  The issue for us appears to be whether from what we have heard of the life of the Applicant during his extended period of liberty and the way in which he returned to give himself up, and of the problems arising from his mental impairment, he should be allowed some further discount.

10.      We observe that the Royal Court, in its sentencing remarks, failed to make any reference to what the Applicant's counsel had raised in mitigation concerning his voluntary return to Jersey and his   response to his arrest resulting in part from his mental condition.  This failure has required us to take a fresh look at whether the sentence imposed by the Royal Court gave sufficient allowance for these matters.  We consider that the Court below, notwithstanding the omissions to which we have referred, did give sufficient allowance for all the points of mitigation.  On the discount for the plea, it was clearly only tendered when the Applicant became aware that the Crown was able to proceed with presenting the necessary evidence to the extent that further denial would be almost certainly doomed.  The allowance for self surrender is inevitably coloured by the reluctance to come clean on the offence and the fact that there was further minor offending soon after return to Jersey.  The mental impairment is unfortunate but cannot in itself call for a separate discount.  Reverting to the Bird argument we do not consider that the evidence of what the Applicant has been doing in the intervening periods brings this case into the exceptional class where allowance should be made as contemplated by Dunn LJ and Lloyd LJ in the passages we have quoted.  The application is dismissed.

Authorities

R-v-Bird (1987) 9 Cr App R (S) 77.

Campbell and 2 others -v- AG (1995) JLR 136.

AG -v- Bain (1996) JLR 227.